Delhi High Court says RTI immunity to enforcement does not cover information sought on bribery or promotion of employees

Earlier this week, the Delhi High Court ordered the Law Enforcement Directorate to provide copies of the seniority list for Lower Division Clerks (LDCs) to an employee of the organization facing prejudices regarding seniority while noting that employees of a security establishment cannot be deprived of their fundamental and legal rights simply because they work in intelligence and security.

The Divisional Bench of Judges Manmohan and Sudhir Kumar Jain was dealing with an appeal challenging the Single Judge’s order dismissing ED’s plea against the Central Information Commission (CIC) order directing the establishment of provide information requested by the employee (respondent here) under the Right to Information Act 2005.

A Superintendent of the Administration Wing of the Law Enforcement Branch had filed a request from RTI seeking seniority list information and a promotion proposal, whereby the CIC ordered the DE to provide the required information.

Challenging the order made by the CIC, the Union of India appealed to the Delhi High Court in 2018, which was dismissed by the Court on 7th December 2018. Being aggrieved, the present appeal was filed in which notices were issued on December 21, 2018, while the stay request was denied.

As a result, an application for special leave was filed in the Apex Court, which was decided with an instruction to the Delhi High Court to first decide the issue relating to the applicability of the RTI Act on the ED , then decide on the appeal within eight weeks.

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Copies of the Respondent’s Promotion Proposal (LOC) placed before the DPC along with copies of the meeting minutes and copy of the promotion/dismissal order issued on the recommendations of the DPC from time to time.

Lawyer Amit Mahajan, representing ED, argued that the information requested as part of the RTI request does not fall under section 24 of the RTI Act and that the legislature granted full immunity to the organizations mentioned in the second appendix to the RTI Act, whereby they cannot be called upon to disclose information under the provisions of the RTI Act.

On the other hand, the lawyer representing the employee argued that in the absence of the information sought, the respondent is not in a position to assert her fundamental and legal right to promotion.

Observations made by the Chamber

The Chamber observed that although the Directorate of Law Enforcement is an intelligence and security organization and cannot be called upon to disclose information under the RTI Act, except where the information sought relates to allegations of corruption and violation of human rights, its employees cannot, however, be deprived of their fundamental and legal rights simply because they work in an intelligence and security establishment. “To hold that would be to say that those who serve in these organizations have no human rights,” the judiciary said.

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The Chamber held that the expression human rights cannot have a narrow or pedantic meaning and that the non-provision of information sought by the employees of the establishment is a violation of human rights because their absence would not authorize them to wave their right to promotion.

“It is well established law that employees have a legitimate expectation of promotion. The intention of the jurisprudence of the service at the level of any institution/organization is to promote peace and harmony and at the level of society, the objective is to promote human rights. If the employees of an establishment cannot agitate their grievances before the judicial authorities, these organizations/establishments can become autocratic”

– noted the bench.

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He goes on to add that:

“In fact, RTI Act is a tool that facilitates the systematic expression of grievances from employees and managers. According to the Statement of Objects and Reasons, the intent and purpose of the RTI Act is to secure access to information in order to promote transparency and accountability in the operation of every public authority. It is said that “sunlight is the best disinfectant” and the RTI law promotes this concept. Therefore, the Services and RTI Acts “act as a safety valve in society”.

The panel, while specifying that information relating to third party promotion offers cannot be provided under the RTI Act, ordered the Center to provide copies of all seniority lists relating to PMAs for the period of 1991 to date as well as copies of the Respondent’s promotion proposal presented here before the DPC, as well as copies of the minutes of the meetings and a copy of the promotion/rejection order issued on the recommendations of the departmental committee promotion from time to time.

About Michael C. Lovelace

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